Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2025-005866

First-tier Tribunal No: HU/58015/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNS

Between

MRS. ISABELLA NKECHINYERE AKUJOBI
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr Rahman, Counsel instructed by A-R Law Chambers
For the Respondent: Ms Khan , Senior Home Office Presenting Officer

Heard at Field House on 2 March 2026

Decision and Reasons
Introduction
1. The Appellant appeals a decision by a First-tier Tribunal (“FtT) Judge (“the Judge”) dated 30 October 2025 dismissing her Human Rights claim.
The Background
2. The Appellant, a national of Nigeria had applied for leave to remain in the UK as a partner of Mr Nichols on 30 May 2023.
3. The claim was refused by the Respondent for reasons set out in a decision dated 16 June 2023.
4. The Appellant's appeal was refused on 30 October 2025. In summary the Judge found that the Appellant and Mr Nicholls were not validly married in accordance with Nigerian law [43]. He found that the Appellant and Mr Nicholls were not in a relationship at all [53] nor had they ever cohabited in a relationship akin to marriage [63]. He found that the Appellant did not have a genuine and subsisting parental relationship with Mr Nichols’ daughter [64]. Accordingly, he concluded that the refusal of the application would not result in unjustifiably harsh consequences for the Appellant, Mr Nichols or his daughter [65]. The Judge found there was no family life as claimed [69] and that the public interest in maintaining immigration control would significantly outweigh the Appellant’s private life interests [70].
The Grounds of Appeal
5. In summary the grounds of appeal dated 13 November 2025 assert that
(i) The FTT raised and considered an unpleaded issue, namely whether the Appellant and Mr Nichols were in a genuine and subsisting relationship and this amounted to procedural unfairness,
(ii) The Judge failed to give adequate reasons for concluding that there was no family life at all,
(iii) The Judge misapplied the law in his approach to assessing the validity of the customary marriage.
PERMISSION TO APPEAL
6. Permission to Appeal was granted on 30 December 2025 by a First-tier Tribunal Judge on the basis that all the grounds were arguable.
RULE 24 RESPONSE
7. The Respondent’s Response to the appeal is dated 16 January 2026 and dealt with each point in the grounds of appeal as follows.
(i) The refusal letter explicitly stated that the Respondent did not accept that the relationship was genuine and subsisting. Under the heading EX.1. it stated, “based on the documentary evidence provided, the Secretary of State does not accept that your “proxy customary” marriage is genuine”. The Respondent said that it had been open to the Appellant’s representatives to seek an adjournment if they had not been adequately prepared to deal with this matter at the hearing,
(ii) It was open to the Judge to draw an adverse inference from the lack of evidence to then conclude that there was no family life as claimed,
(iii) The Respondent asserted that the Judge had properly assessed whether there was a legally recognised customary marriage and properly found that there was not.
The Hearing of the Appeal
8. The Appellant’s representatives had not filed a bundle on CE-File despite being required to do so and despite receiving reminders to do so. The FtT bundle had been uploaded. The representatives then emailed a bundle to the Tribunal on the working day before the hearing although this was not actioned until after the hearing before me. Ms Khan very fairly conceded that the lack of a bundle had not hindered her ability to prepare for the hearing, and I did not deem it necessary to consider a wasted costs order.
9. Mr Rahman submitted that there were three grounds of appeal. Ms Khan confirmed that the three grounds of appeal were in dispute.
10. Mr Rahman relied on the detailed Grounds of Appeal dated 13 November 2025. He explained that he was unable to comment on the Note of Proceedings attached to the Rule 24 Response. He was not counsel instructed before the FtT. Mr Rahman relied on IO (points in Issue) Nigeria [2004] UKIAT 00179 to support his contention that an Appellant is entitled to assume that they satisfy a certain part of the Rules unless it is explicitly stated otherwise. In developing this argument Mr Rahman submitted that the Respondent should have specifically referred to Appendix FM. That is to say that if the Appellant and Mr Nichols were not in a genuine and subsisting relationship then paragraph E-LTRP 1.7 should have been raised. With regard to the third ground Mr Rahman said that headnote 2 of Kareem (Proxy marriages – EU law) [2014] UKUT 00024(IAC) supported his submission that there is a presumption that marriage documents which have been submitted with an application would ordinarily be acceptable.
11. Ms Khan relied on the Rule 24 response dated 16 January 2026 and the Note of Proceedings attached. She submitted that whether there was a genuine and subsisting relationship was an issue which was before the FtT to decide and relied on Lata (FtT : principal controversial issues) [2023] UKUT 00163 particularly headnote 1. With regard to Ground 2 she said there were multiple reasons given by the Judge about the lack of evidence about family life. She submitted that the Judge was entitled to take into account the absence of evidence even where corroboration is not required ([15] of ST (Corroboration-Kasolo) Ethiopia [2004] UKIAT 00119). With regard to the third ground, Ms Khan said that the burden of proving the validity of the marriage fell on the Appellant. Doubt had been raised and the Judge was entitled to look for other evidence which he did and found lacking for the reasons stated.
Analysis
Ground One
12. The refusal letter is dated 16 June 2023. I find that it does not assert that the Appellant and Mr Nichols are not in a genuine and subsisting relationship. At the top of Page 3 it states that the customary marriage certificate is not accepted as valid and therefore the Respondent went on to consider whether the Appellant and Mr Nichols met the definition of partner due to living together as set out in GEN.1.2. The Respondent said that the Appellant did not meet the definition because “you have clearly not lived together for a minimum of two years prior to the submission of your application”. It was not said that the Appellant and Mr Nichols had not lived together at all.
13. The only reference to genuine and subsisting relationship in the refusal letter can be found under the heading “EX.1 Requirement”. It reads as follows “you claim to have a genuine and subsisting relationship with your partner. However, based on the documentary evidence provided, the Secretary of State does not accept that your ‘proxy customary’ marriage is genuine”. I find that this meant that the Respondent did not accept that the marriage was valid. The validity of the marriage had been put in issue in the second paragraph at Page 3. It is quite possible for a customary marriage to be invalid but for the alleged participants to be in a genuine and subsisting relationship. This is what the Appellant thought the Respondent was saying in the refusal letter (see the Skeleton Argument which was before the FtT). I find that this was a reasonable reading of the letter. The following reasons also assist.
14. In the same paragraph of the letter the Respondent states that the Appellant and “your partner” could continue family life together outside the UK. At page 5 the Respondent wrote “As mentioned previously it is open to your British partner… to visit you should they choose”. Further on the same page the Respondent refers to “your established family life ties with your partner”. The Respondent repeatedly refers to Mr Nichols as the Appellant’s “partner”.
15. The Respondent reviewed its decision on 18 April 2024 (Respondent’s Review). At Paragraph 6 it is stated that the grounds of refusal are maintained. From paragraph 7 to paragraph 23 the Respondent deals with why it is said that the customary marriage is not valid. The relationship between the Appellant and Mr Nichols is not put in issue and indeed at paragraph 44 reference is made to the “Appellant’s partner” supporting an application for entry clearance following their temporary separation. At Paragraph 49 the Respondent asserts that the Appellant “and her partner made a choice to enter into relationship in the full knowledge that the Appellant's immigration status was unlawful and precarious”. The review decision does not put in issue whether the relationship was genuine and subsisting.
16. In his decision the Judge set out the three issues he said were in issue following discussions with the representatives [29] and whether the relationship was genuine and subsisting was not an identified issue. At the end of the hearing the Appellant’s barrister [49] submitted that the Respondent had not disputed the genuine and subsisting nature of the relationship. The Judge found that this was implicit in the refusal letter [49]. The note of proceedings before the FtT produced with the Rule 24 Response includes a question from the Judge to the Respondent enquiring whether the Respondent accepted there is a genuine relationship and the Presenting officer confirmed this was in issue.
17. I find that the Presenting Officer could not fairly confirm that the nature of the relationship was in issue when this was not the position in the refusal letter. The Respondent relied on Lata. That case concerned a point that the Respondent did not make before the FtT but which then formed the basis of its appeal to the Upper Tribunal. That case does not assist the Respondent’s position. In Lata at [29] it was found the Secretary of State had not expressly identified an issue before the FtT which was then argued before the Upper Tribunal. And at [31] “The task of the Judge is to deal with the issues that the parties have identified”. In the present appeal I find that the Judge listed 3 issues [29] and none of them were whether the relationship was genuine and subsisting.
18. I am satisfied that the Judge treated the matter of whether the relationship was genuine and subsisting as a matter in issue when it was not an issue raised in the refusal letter. The Appellant was not on notice that this issue would be determined by the Judge and so had not had the opportunity to prepare to deal with it. I do not find that it was incumbent on the Appellant’s representative to seek an adjournment, the onus was on the Judge to maintain procedural fairness. The Judge committed a procedural irregularity which made a material difference to the outcome of the hearing and as such amounts to an error of law (R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982).
19. I am satisfied that the error of law was material to the outcome because the Appellant had not provided documentary evidence to prove the relationship as set out in the Grounds of Appeal at [14] – such as photographs, messages and communications and details of financial interdependence and witness evidence. I am satisfied that had the Appellant been on notice that there was a live issue about whether the relationship was genuine and subsisting her appeal could have been prepared in a different way.
20. The error of law was material because having found that the relationship was not genuine and subsisting the Judge found that there was no family life between the Appellant and Mr Nichols.
Ground Two
21. The conclusion that there was no family life between the Appellant and Mr Nichols [63] followed the finding that there was no genuine and subsisting relationship. Given my finding in relation to Ground One, it must follow that the reasoning about absence of family life was not sound because at least in part it was founded on a procedural irregularity. The Judge erred in law in making adverse credibility findings [62] on a lack of documentary evidence on matters which had not been put in issue.
Ground Three
22. This concerned whether there was a legally valid customary marriage. Both parties asserted that Kareem (Proxy marriages – EU law) [2014] UKUT 00024(IAC) would assist. I was referred to [13] “…that usually a marriage certificate issued by a competent authority will be sufficient evidence that a marriage has been contracted. Of course, a document which merely calls itself a marriage certificate does not have any legal status. A certificate will only have legal status if it is issued by an authority with legal power to create or confirm the facts it attests, that is, by an authority that has such competence. Where a marriage document has no legal status or where such status is unclear, other evidence may be used to establish that a marriage has been contracted”.
23. A Certificate of Customary Marriage dated 24 May 2023 and Confirmation of the Customary marriage signed by a Registrar had been provided by The Appellant. The Respondent said in the refusal letter that it was not accepted that the certificate was valid. The Review decision was more detailed and highlighted that there is a high incidence of document fraud in Nigeria and there was a lack of reliable evidence about the recognition of marriage under Nigerian Law and further that when considered in the round the documents should be afforded very little weight. Quite clearly the validity of the marriage and the documents were in issue. I find that there was therefore a doubt raised that the marriage certificate was issued by a competent authority so that the marital relationship would need to be proved by other evidence ([68 (d)] of Kareem).
24. At [54] in Kareem, it was held a dowry, evidence of parties’ consent, parental consent are requirements of customary marriage in Nigeria unless evidence is provided that this is not required in the particular community. No such evidence was before the FtT and I therefore find that the Judge’s findings at [42] were findings that he was entitled to make given the evidence before him and the case law.
25. The Judge found that the evidence from the Appellant and Mr Nichols about the proxy marriage wholly lacked credibility [40] and [41] and absent the adverse finding on whether the relationship was genuine and subsisting this finding could have been preserved. However, the Judge determined whether the documents were documents where reliance should be properly placed having considered the evidence in the round and having made the impermissible finding that the Appellant and Mr Nichols were not in a genuine and subsisting relationship. It is possible that this latter finding influenced the finding on the validity of the documents and accordingly the finding cannot be preserved because it is possibly tainted by procedural unfairness.
Conclusions
26. Accordingly, I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007).
27. As to disposal, I considered whether the proper course was to remit the appeal or to order that the decision be remade in the Upper Tribunal. Given that I find that there was procedural unfairness before the FtT then I have decided that the appropriate course is for the decision to be remitted to the First-tier Tribunal pursuant to Section 12(2)(b)(i) TCE 2007 and in accordance with exception in paragraph 7.2 (a) of the Practice Statement. Both representatives confirmed that this would be their preference if indeed I found Ground 1 to be made out.

Notice of Decision
1. The Appellant’s appeal is allowed.
2. The decision of the FtT dated 30 October 2025 involves the making of an error of law and is set aside in its entirety.
3. The Appeal is returned to the First-tier Tribunal sitting at Birmingham to be heard on the first available date not before Judge CM Chapman.
4. These Directions may be supplemented by later Directions made by a Judge or Legal Officer of the First-tier Tribunal.

C Burns
Deputy Upper Tribunal Judge Burns

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2026